Best Evidence Rule does NOT mean that you have to put the best evidence forward  rename it “original document rule” in your mind

Came about in old common law before industrial revolution before copier

There was a distrust for handmade copies at this time so court wanted original document  hence name “original document rule”

Bring original if you’re trying to prove contents of original

Federal rule much broader than common law rule

Procedure:

1) First ask yourself if rule is implicated

2) Then ask if you have to use original, is there an exception

Summary of Rule:

1) Applies

1002: To prove the content of a writing, recording, or photo, the original writing, recording or photo is required, except as otherwise provided in these rules or by Act of Congress

If Best Evidence rule applies then:

1) Generally, duplicate is admissible to the same extent as the original

2) However, duplicated not admissible if unfair to admit in lieu of the original or a genuine dispute as to the original’s authenticity exists

3) Even if original is require, production of such original can b excused under certain circumstances

Exceptions Where Original Need Not Be Produced:

1) Original lost or destroyed

2) Original not obtainable

3) Original in possession of opponent

4) Collateral (Unimportant items)

General Notes:

Most effective/persuasive evidence is not always the most reliable evidence but because this is generally not the case, the law does not require parties to produce the best evidence, and in fact the law does not generally impose any such requirement

Exception = “Best Evidence Rule”

Arises in proving the contents of writings

Rule precludes proof of the terms of a writing no only by testimony, but also by a copy (even if reliable), unless the original is unavailable through no fault of the party seeking to prove its content

“Best Evidence Rule”—5 Considerations

1) Written word traditionally has special sanctity in legal affairs, justifying more stringent proof requirements

2) Any method of proving the content of a writing other than the writing itself, is distinctly inferior

Variation in wording can make BIG difference

3) Modern photocopy methods have not always been available and copies of writings have been viewed with suspicion

Requirement for original = safeguard against forgeries

4) Production of original writings assures completeness and prevents segments from being removed from their context

5) Examining the writing may help resolve disputes over authenticity

FRE and Best Evidence Rule:

FRE 1002:

Codifies Best Evidence Rule and extends it to recordings and photographs

Sets forth general rule that original is required except as provided for by rules

FRE 1004(4):

Dispenses w/ requirement of producing the original when the writing, recording or photograph is not closely related to a controlling issue

Problem 14-A:

Paula sues Daniel for statements made in letter to P’s employer  letter isn’t produced  On appeal, Daniel contends that it was clear violation to allow employer to testify at to contends of letter w/out being required to produce it

Questions:

Was duplicate produced? Why didn’t he object? Did D give testimony as to contents of letter or did he give written admission? Were contents collateral?

Class Notes:

Court of appeal will focus on whether error was harmless (harmless error is not a ground for appeal) (Must → make a timely objection and a timely offer of proof).

Substantial right of the party must have been affected for appeal to be granted

Court will determine whether writing is central to the case and whether the contents of the writing is challenged

Definitions—Rule 1001:

1) Writings and Recordings;

Writings and recordings consist of letters, words, or numbers or their equivalent…

2) Photographs

3) Original:

An original of a writing or recording is the writing or recording itself or any counterpart inteded to have the same effect by a person executing or issuing it. An original of a photo includes the negative or any print therefrom. If date are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect he data accurately, is an original.

4) Duplicate:

Rule 1003 recognizes use of modern technology and permits photocopies

Admissible to same extent as original unless:

1) a genuine question is raised as to the authenticity of the original or

2) in the circumstances it would be unfair to admit the duplicate in lieu of the original

Rule 1004: Admissibility of Other Evidence of Content:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—

1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

Other Class Notes:

Best evidence rule comes into play where…

1) where substantive law mandates that you prove contents

2) you’ve decided that you want to prove the contents

United States v. Duffy (US Court of Appeals for 5th Circuit, 1972):

Facts:

D was convicted of knowingly transporting stolen car from FL to CA

D was employed at car dealership in FL  car was in for repair in body shop where D worked  that same weekend D and car disappeared

D tried to argue that he worked on the car in FL, but that he’d hitch-hiked to CA

Police officer and FBI agent testified that in trunk of car was suitcase where shirt w/ monogram mark DUF

D objected to admission of testimony and asked that shirt be produced  Trial judge overruled and D appealed

Legal Issue:

Did the trial court’s decision not to require production of the monogramed shirt, violate the Best Evidence Rule? NO b/c rule was not applicable

Holding/Rationale:

Best Evidence Rule:

In proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent

Applicability:

Rule not applicable here b/c shirt w/ mark isn’t considered writing

Judge has discretion to treat evidence as chattel or writing where evidence = object bearing mark (that’s chattel AND writing)

Judge should consider accuracy policy behind rule when making decision  here this wasn’t a problem because inscription was 3 letters

Writing/Mark was also not central to the case  shirt was collateral evidence of crime

Class notes:

Court says object is inscribed chattel therefore original isn’t necessary  this is an unlikely ruling

RULE 1003: A duplicate is admissible to the same extent as the original UNLESS a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

*** A copy CAN be an “original” IF the copy is the actual Doc in dispute

Always subpoena originals, you have an absolute right to inspect clear crisp original copies, dont accept illegible docs.

Notes:

Guidelines for TC Judge in Determining Applicability of Best Evidence Rule:

The term “collateral” and the defining phrase used in 1004(4) imply that it is the unimportance of the matter in question to the issues in the case which counts. NO doubt this factor is significant, but others facts that are equally important include:

a) the simplicity or complexity of content and consequent risk of error in admitting a testimonial account

b) the strength of the proffered evidence of content, taking into account corroborative witnesses or evidence and the presence or absence of bias or self-interest on the part of the witnesses

c) the breadth of the margin for error within which mistake in a testimonial description would not undermine the point to be proved

d) the presence or absence or an actual dispute as to content

e) the ease or difficulty of producing the original, and

f) the reasons why the proponent of other proof of content does not have or offer the original itself

C. Defining An “Original”

Problem 14-B:

Denise has Dr. Murphy arrange for adoption of her newborn on express condition that her identity will never be disclosed to adoptive parents  later Dr gives child photocopied papers that show mother’s name

In this case the photocopy would actually be considered an original under the definition in 1001 because it was meant to have the same effect by the person executing it. Because the copy was the document shown to the daughter that put the issue in dispute

D. Use of Duplicates:

General Notes:

Duplicate (under 1001(4)) = machine-made copy, not handmade copies

Because they are so good now, 1003 permits duplicate w/out need to make excuses for nonproduction w/ 2 exceptions

Problem 14-D:

P sues hospital and dr for negligence that caused permanent brain damage  after operation she is permanently comatose and loses her unborn baby

Dr claims that it would be negligent to operate on patient who had eaten 1 hour before surgery but claims record shows P had eaten 9 hours before

Nurse testifies that P had eaten 1 hour prior, chart reflected this, but after failed surgery, dr forced nurse to change form  before doing so nurse photocopied original writing on form

Copy is offered as evidence and D objects on Best Evidence Rule

Copy should be treated as original and trier of fact should be left to determine whether document was forgery under FRE 1008(a)

E. Best Evidence Doctrine in Operation:

General Notes:

2 Situations of Application of Doctrine:

1) Circumstance in which substantive law forces the content of a writing into prominence, and in effect simply requires one party or another to prove that content

2) Circumstance in which a party chooses to prove content, even though she might theoretically present an adequate claim or defense w/out such proof

Situation in which party strategy forces writing into prominence

Problem 14-E:

Best evidence objection should be sustained because the we are trying to get content in as evidence and prove contents  substantive law requires proof of contents therefore original in necessary

Problem 14-F:

Testimony is being offered to prove content of photo therefore you need to submit original

This is different than the meyers case

Meyers v. United States (US Court of Appeals, District of Columbia Circuit, 1948):

Facts:

Meyers on trial for suborning perjury and D2 on trial for perjury

Govt attempt to prove that D2 lied in testimony to Senate Committee by using testimony of Chief Counsel to Committee as to what was said

Meyers appeals this as “bizarre procedure”

Legal Issue:

Was it reversible error to allow Chief to testify as to what D2 said to subcommittee?

Holding/Rationale:

Best Evidence Rule:

Court thinks Chief could testify despite the fact that the transcript may have been the best evidence of D2’s testimony before subcommittee

Court thinks anything else would be misconception of rule

They say rule is limited to cases where contents of writing are to be proved and here there was NO attempt to prove contents of writing

Transcript = shorthand of what was said but NOT only admissible evidence RE it

D also had copy of transcript and could have crossed D regarding any mistakes

Dissent:

This that when transcript is 315 pages it is ridiculous to have man testify from memory as to what was said to prove perjury

Class Notes:

Best evidence doctrine is not doctrine of probative hierarchy

Transcript is probably best evidence but that doesn’t mean that Chief can’t testify and govt can’t use that as evidence of testimony

Best evidence doctrine is limited to cases where contents of writing are to be proven  that’s not the case here

Just because there is more probative evidence out there doesn’t mean it must be used

Bring the original if you are trying to prove the content of a writing recording or photo

Problem 14-G:

DEA records and hear conversation between Peter and Quinn in drug surveillance

Nolan (DEA) questions Peter and has him repeat and sign a statement that stenographer wrote

1) Nolan can testify because it is not written work

2) Nolan can testify as to Peter’s statements  because statements were not written until after

3) Nolan can testify about what Quinn said

What was said is the issue, not what was on the recording, therefore the tape is not required

Exactly like Myers, it should be overruled because the issue was what the participants said in conversation, not the recording of the conversation

Problem 14-H:

Best Chix sues farmer to recover balance of price adjustment b/c some of the chickens were infected

Best Chix wants to testify as to contents of vet report but the report should be submitted since it is a written document

Objection Sustained: because the farmer is seeking to produce a writing that is not unavailable at the tie of trial

D hired P to make parking lot for its plant and there was clearing that had to be done  but P didn’t have to remove material cleared

On last day under contract P claims that D made oral agreement with P to pay him $13/hr/truck to haul material away  bill came to $25,000 which D refused to pay

D appeals on grounds that DC erred in admitting certain evidence in violation of Best Evidence Rule

1) Exhibit A – summary of date contained in invoices and tally sheets (D objected several times at trial and P was supposed to bring in tally sheets but never did)

2) Photostatic copies of bills and invoices sent to P by other truckers for rental of their trucks on job

3) Copies of 2 bills sent to D by P for work done

Legal Issue:

Did TC err by not requiring original copies to be submitted? YES  New Trial

Holding/Rationale:

Tally Sheets RE #1:

Best Evidence Rule tells us that tally sheets recording work are the best evidence to show what work was actually performed therefore summary (secondary evidence) of their content it NOT sufficient UNLESS proper showing that it is unavailable

Evidence doesn’t show that sheets were unavailable just that P failed to attempt to produce

It would have also had to be shown that loss of originals wasn’t the fault of P

Result:

Normally prejudicial error with respect to damages requires new trial on damages only

HOWEVER b/c entire case depended on P’s credibility and P was never called upon to explain credibility according to record  records could in fact entirely corroborate D’s account  THEREFORE NEW TRIAL NEEDED

Problem 14-L:

Contract was burned in fire through no fault of P and he wants to prove terms by testimony rather than photocopy

1004 gives no hierarchy scheme so testimony is fine → just keep in mind that the other side can introduce a photocopy especially if it is contradictory to the testimony

If you’re excused from producing the original, the rules don’t mandate that you submit next most probative piece of evidence

RULES DO NOT MANDATE THIS

NO HEIRARCHY of secondary evidence

Problem 14-M:

Trimble is prosecuted for tax evasion and govt calls IRS accountant to testify

Prosecutor offers

1) IRS accountant’s summary of deposits and

2) chart prepared by accountant summarizing entries

1006 is only applicable if the court cannot conveniently examine all volumes but originals should still be made available for examination at reasonable time and place

Objection should be overruled, assuming there are just way too many documents to realisticly examine in court.

The Verdict

The original document “was destroyed” when the 1 was changed to a 9, therefore the photocopy shold have come in as an original